After attending today’s O’Connor Project conference at Georgetown Law, I am convinced that Justice O’Connor’s aim is to fill the state judiciaries with little Justice O’Connors. And that’s not necessarily a bad thing.
The conference asked, “Will Caperton and Citizens United Change the Way States Pick Judges?” Panelists fretted over the influence of corporate money in state judicial elections as well as the right balance between a judge’s receptivity to and independence from public opinion and the political climate. O’Connor’s recommendation of merit selection–a process she helped institute as a state legislator in Arizona–seems a more responsible, insulated hybrid of appointment and election processes.
On the whole, I find agreeable the idea of a judiciary made up of pragmatists like O’Connor who, as Barry Friedman and Dahlia Lithwick wrote yesterday, possess “a built-in barometer of the public mood.” Perhaps the tiny dissenter in my head screaming “BUSH V. GORE! BUSH V. GORE!” can be countered by the understanding that that was the rare case to generate so much heat as to malfunction O’Connor’s barometer. And really, O’Connor’s vote was consistent with the weary public’s desire for an end to the election’s interminable indecision; her mistake was interpreting that weariness to require the Court to unilaterally declare a winner.
Nevertheless, O’Connor’s own blind spots during her Supreme Court career may yet prove that however a state chooses to balance a judicial candidate’s receptivity and insulation from politics, there will be no perfect reform. The key is to minimize the variables that will adversely impact the balance. And for its efforts to do so, the O’Connor Project deserves credit.
For a good write-up of O’Connor’s remarks, see Adam Liptak’s report on the NYT website.
SOC on CU: ‘If you want my legal opinion go read’ McConnell.